Monday, December 22, 2014

Counsel’s Role in Preparing Expert Report Bars Expert’s Testimony

The court granted plaintiff's motion to exclude testimony from a defense invalidity expert who did not draft his own report. "The problems with [the expert's] testimony stem from the fact that he did not draft his own report; defense counsel drafted it for him. The Court finds that practice to be a remarkable breach of ethics and protocol, which defense counsel brazenly attempted to justify at oral argument. . . . He may indeed be competent to provide testimony in support of the invalidity defenses in this case. But he has surrendered his role to defense counsel, and that is not how the adversary process works. . . . [The expert] devoted less than 30 hours developing his opinions about the case, nearly half of which was spent at or traveling to the law office of [defense] attorneys. . . . Because [the expert] did not furnish a report that even approximated his original work in this case, and he could not apply the facts of the case to the principles upon which an obviousness opinion necessarily is based, he cannot testify as an expert in this case."

Numatics, Incorporated v. Balluff, Inc. et al, 2-13-cv-11049 (MIED December 16, 2014, Order) (Lawson, J.)

How have other courts addressed counsel’s role in preparing expert reports?

In the decision report above, Judge Lawson states that counsel’s role in preparing expert reports “generally is limited to ensuring that Rule 26’s formal requirements are satisfied.” Further, “[d]etermining whether counsel crosses the line separating permissible assistance from improper participation in the expert’s report writing calls for ‘a fact-specific inquiry.’”

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